Why did Roberts do it? Why did this respected conservative uphold what still seems to be a dictatorial seizure of power – to order every citizen to buy health insurance or be punished and fined?

Congress can do this, wrote Roberts, because even if President Obama and his solicitor general insist the fine is not a tax, we can call it a tax:

“If a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. … If the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

Roberts is saying that if Congress, to stimulate the economy, orders every middle-class American to buy a new car or face a $5,000 fine, such a mandate is within its power.

Now, Congress can indeed offer tax credits for buying a new car. But if a man would prefer to bank his money and not buy a new car, can Congress order him to buy one – and fine him if he refuses?

Roberts has just said that Congress has that power.

John Roberts – Caricature (Photo credit: DonkeyHotey)

Clearly, the chief justice was searching for a way not to declare the individual mandate unconstitutional. But to do so, he had to go through the tortured reasoning of redefining as a tax what its author and its chief advocates have repeatedly insisted is not a tax.

Why did he do it? One reason Roberts gives is his innate conservatism.

WASHINGTON – JANUARY 27: Members of the U.S. Supreme Court listen to U.S. President Barack Obama speak to both houses of Congress during his first State of the Union address at the U.S. Capitol on January 27, 2010 in Washington, DC. Pictured are: (L-R, Front) Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer; (L-R, Back) Treasury Secretary Timothy Geithner and Justices Samuel Alito and Sonia Sotomayor. Since taking office a little over a year ago, Obama’s approval ratings have dropped significantly according to recent polls. (Image credit: Getty Images via @daylife)

As he wrote in his opinion: “We (the Court) possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

This is a sentiment many of us seek in a jurist in a republic: a disposition to defer to the elected branches to set policy and make law. But Roberts here raises a grave question – about himself.

While it is not the job of the Supreme Court “to protect the people from the consequences of their political choices,” it is the job of the Supreme Court to pass on the constitutionality of laws.

gophum (Photo credit: GunnyG1345)

Did Roberts look at that individual mandate and conclude that it passed the constitutionality test? Or did he first decide that he did not want to be the chief justice responsible for destroying the altarpiece of the Obama presidency and sinking that presidency – and then go searching for a rationale to do what he had already decided to do?